DMCA Notices: take-down & counter

Getting a DMCA (Digital Millennium Copyright Act) take-down Notice (DMCA Notice) via email or having to file a DMCA Counter Notice, is serious business. It's a legal process that can land a person in a lot of hot water if abused. The following is an overview of DMCA, how to file DMCA Take-down Notice claim or send a DMCA Counter Notice. For more extensive information click here.

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Disclaimer: the following is provided as is and for general information only and should not be regarded or construed as legal advice on DMCA matters or the veracity of such claims. It is recommended persons or parties wishing to pursue a DMCA action seek the advice of an appropriately qualified legal professional versed in DMCA beforehand.

DMCA is an acronym for the "Digital Millennium Copyright Act", a subsection of the United States Criminal Code that protects the exploitative rights of authors, creators, holders of Copyright, in digital or electronic formats. Essentially it's a legal framework within which material can be transmitted, transferred etc., without necessarily infringing the Copyright or exploitative rights of others; a Internet Service Provider for example has to copy, duplicate and transfer a picture from server to server before it appears on a persons computer screen. In a literal sense this is an infringement of Copyright because the activity is not granted by the author of the work being transmitted. DMCA accounts for this by creating the necessary legal structure within which the activity can occur without the ISP specifically infringing Copyright.

In creating this framework of granted activities however, DMCA acknowledges the fact that infringements can and do happen so provides a means to allow material to be 'taken down' or 'blocked' from further transmission. This is the DMCA Notice, often referred to as a 'take down' or 'cease and desist' notification. Essentially, the rights holder sends a 'Cease and Desist' Notice outlining what and where to the party suspected of infringing their material. Upon receipt they would then be obliged to remove the material referenced until a time-limit has expired or a Counter Notice has been send in reply.

Receiving a DMCA take-down Notice is not an outright accusation of guilt, mistakes, errors happen, so DMCA allows for the issuance of a DMCA Counter Notice which allows the recipient of the take-down to refute the claim of infringement When this happens material taken offline during the process has to be returned, reactivated etc.

The first port of call is to determine whether the party to which the Notice is to be sent subscribes to DMCA; persons or entities in the United States are subject to it, those outside are not but often follow its spirit, generally providing a drop-point to which DMCA Notices can be sent. The next step is then to determine the 'worth' of the exercise because it comes with a number of caveats; namely that sending a Notice invokes a legal procedure that has serious consequences, and that doing so exposes personal information to the recipient.

If a claim is false or in error, a DMCA Counter Notice can be sent in return. Similar to the above, check to see if the sender is subject to DMCA, gather the information required and then file the Counter Notice declaration. Upon receipt the material should be returned.

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